Friday, October 28, 2011

Ineffective assistance of defendant’s trial counsel.

In People v Armstrong, __ Mich __ (#142762, 10/26/2011) the ineffective assistance of defendant’s trial counsel in failing to seek the introduction into evidence of cell phone records that would have undermined the complainant’s credibility prejudiced defendant, thereby entitling him to a new trial.

A defendant must meet two requirements to warrant a new trial because of the ineffective assistance of trial counsel. First, the defendant must show that counsel’s performance fell below an objective standard of reasonableness. In doing so, the defendant must overcome the strong presumption that counsel’s assistance constituted sound trial strategy. Second, the defendant must show that, but for counsel’s deficient performance, a different result would have been reasonably probable.

It did make a difference whether the jury saw the cell phone records since it heard their contents read into evidence by the complainant. The complainant acknowledged only a fraction of the numerous communications revealed in the cell phone records. Further, according to the trial court’s instruction, the jury was to disregard the cell phone records because they had not been properly admitted. We presume that a jury follows its instructions. Moreover, even assuming that the jury considered the portion of the cell phone records read into evidence, the jury also heard from the prosecution that defendant or defense counsel might have fabricated the records. We disagree with the Court of Appeals that instructing the jury that the attorneys’ statements and arguments are not evidence cured such a significant and damning accusation.  The failure of defendant’s trial counsel to pursue the introduction of the cell phone records into evidence not only fell below an objective standard of reasonableness, but also prejudiced defendant.

Monday, October 17, 2011

A certificate of mailing to prove notice may be testimonial.

In People v Nunley, __ Mich App __ (#302181, 10/13/2011) defendant was charged with DWLS and challenged the certificate of mailing by the Secretary of State as being testimonial.  The Court of Appeals held that even if the certificate of mailing was prepared in the regular course of the Secretary of State’s business, the certificate of mailing is testimonial because it will be used for the purpose of proving or establishing some fact at trial.

The Confrontation Clause of the United States Constitution provides, “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with all witnesses against him . . . .” US Const, Am VI. The Michigan Constitution provides the same guarantee for criminal defendants. Const 1963, art 1, § 20; Dinardo, ___ Mich App at ___. Testimonial statements of witnesses absent from trial are admissible only when the original declarant is unavailable and the defendant has had a prior opportunity to cross-examine that declarant. Michigan v Bryant, ___ US ___ (2011); Crawford v Washington, 541 US 36, 54, 68; 124 S Ct 1354; 158 L Ed 2d 177 (2004). Ordinarily, whether a statement is testimonial depends on whether it constitutes a “‘declaration or affirmation made for the purpose of proving some fact.’” Crawford, 541 US at 51 (citation omitted). This Court has explained that “[s]tatements are testimonial where the ‘primary purpose’ of the statements or the questioning that elicits them ‘is to establish or prove past events potentially relevant to later criminal prosecution.’” Dinardo, ___ Mich App at ___, quoting People v Lewis (On Remand), 287 Mich App 356 (2010), quoting Davis v Washington, 547 US 813, 822 (2006). If a statement is nontestimonial, then “the Confrontation Clause does not restrict state law from determining admissibility.” People v Garland, 286 Mich App 1 (2009), citing Crawford, 541 US at 68.

In Melendez-Diaz v Massachusetts, ___ US ___; 129 S Ct 2527 (2009) the United States Supreme Court held that the “certificates of analysis” including forensic analysis results for seized controlled substances constituted testimonial statements barred by the Confrontation Clause. Melendez-Diaz, 129 S Ct at 2531-2532. The Melendez-Diaz Court observed that the “certificates” were made under circumstances which would lead an objective person to reasonably believe that the statement would be available for use at trial and that under Massachusetts law their sole purpose was to provide prima facie evidence regarding the analyzed substance. Id., quoting Crawford, 541 US at 52 and Mass Gen Laws, ch 111, § 13. The Court concluded that the analysts who created the “certificates” were witnesses for purposes of the Confrontation Clause and defendants had the right to be “confronted” by them at trial, absent a showing that the analyst was unavailable to testify and defendant had a prior opportunity for cross examination.

In order to convict defendant of DWLS, the prosecutor must prove that defendant’s license had been suspended and that he has been notified of the suspension as provided in MCL 257.212. Like the lab analyst report at issue in Melendez-Diaz, the certificate of mailing here is offered to prove a fact in question. Melendez-Diaz, 129 S Ct at 2532, quoting Crawford, 541 US at 51. Indeed, the certificate of mailing here is offered to prove an element of the offense—proof of the notification required by the plain language of MCL 257.904(1).  Furthermore, in light of the fact that notification is an element of the offense, certainly the certificate of mailing was “‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” Id., quoting Crawford, 541 US at 52.  The Secretary of State representative who created the “certificate” was a witness for purposes of the Confrontation Clause and defendant had the right to be “confronted” by him at trial, absent a showing that he was unavailable to testify and defendant had a prior opportunity for cross examination.